Identity, Sovereignty, and Power: The Cherokee-Delaware Agreement of 1867, Past and Present

On 8 April 1867 the Native American tribes of the Cherokees and Delawares, under United States supervision, signed an agreement facilitating the removal of the Delawares to the Cherokee lands in Indian Territory (present-day Oklahoma). ¹ The terms of this agreement came to be responsible for several legal disagreements between the two nations in the nineteenth century, as well as a drawn-out legal fight in the twentieth century in which the Delawares lost and then regained their federal recognition. ² The treaty's long-lasting effects in this respect are not the sole reason the nature of the agreement merits our attention. Even in 1867 it was unusual because it departed from the more common way of arranging for the removal of American Indian tribes, which usually consisted solely of a treaty between the United States government and the Indian nation in question. ³

The Negotiation of the Cherokee-Delaware Agreement of 1867

Since the terms of the Cherokee-Delaware agreement were concluded on the initiative and under the supervision of the U.S. government and countersigned by the United States president, it cannot be considered simply as an expression of the free will of, and a compact between, the two tribes. Rather, it should also be seen as a means by which the U.S. government pursued its Indian policy. At the time of the agreement, the policy of removal as a way to separate and concentrate the Natives, presumably in the hope of enabling them to assimilate later, was well established. Later, another policy of allotment or the policy of so-called Americanization was pursued. This was supposed to turn tribal peoples into individual United States citizens. For the time being, however, one of the prime concerns of the United States was the removal of Indians to the newly created Indian Territory. ⁴

This removal effort included the Delawares, also called Lenape, who, after a number of previous removals, had been residing in Kansas for over thirty years. Preludes to this removal had taken place before the Civil War. Between 1854 and 1861 the United States had repeatedly reduced the Delaware landholdings in Kansas in order to accommodate railroads and white settlers. ⁵ Consequently, the tribe had come to the conclusion that it could no longer survive under the constant harassment of whites in Kansas and had resolved in its general council to seek a new reservation in Indian Territory. ⁶ Delaware delegations had even looked at places for possible future settlement. While the tribe had discussed several options, the American authorities decided that the Delawares should move to the Cherokee section of Indian Territory. ⁷ In 1860, after a delegation had inspected some lands, a vast majority of the tribe formally voted in favor of moving to the Cherokee lands. ⁸ However, their removal was postponed by the Civil War.

At the end of the war, the U.S. government resumed its efforts to arrange for a permanent removal of the Delawares from Kansas, more or less imposing a treaty that deprived the Lenape of what still remained of their Kansas lands and urging them to live in what used to be the southern part of Indian Territory, among the Cherokees. This treaty, eventually signed on 5 July 1866 (and ratified on 10August 1866), provided for a number of things, such as the sale of land to the railroad. It also outlined the procedure for the voluntary dissolution of tribal ties and the adoption of United States citizenship for individual Delawares seeking to remain in Kansas. ⁹ In Article 4 the United States agreed to sell the Delawares a tract of land "to be selected by the Delawares in one body in as compact a form as practicable." This was to be chosen from the lands already ceded by the Choctaws, Chickasaws, Creeks, and Seminoles, or a tract still to be ceded by...